"LET it be known to all and sundry that General Pervez Musharraf has taken the oath of office and assumed the office of the President," read the official proclamation issued on June 20, hours after the General took charge as the President of Pakistan.
The babus in the military establishment were obviously fulfilling the diplomatic requirement of informing the rest of the world about the dramatic but quiet transformation at the presidential palace. They had obviously not bothered to take into account the disturbing questions arising out of what is described as the "second coup" by Musharraf. The whole affair is made even more intriguing by the fact that the General was already presiding over every conceivable "public" office envisaged in the suspended 1973 Constitution.
To say the least, the two amendments made to the Provincial Constitution Order (PCO) by the military government to remove Muhammad Rafiq Tarar as President and appoint Musharraf in his place are bizarre and raise serious legal and constitutional questions.
No doubt the logic behind the "removal" of Tarar is at one level simple, but legal and constitutional experts wonder if the two orders would stand judicial scrutiny. Abdul Hafeez Pirzada, prominent constitutional expert and author of the 1973 Constitution, which was adopted unanimously, has questioned the operation and said that it can be challenged in the court of law. It is another matter that the Chief Justice of the Supreme Court himself administered the oath of office and secrecy to Musharraf.
"Tarar was an elected President. He was supposed either to resign or to be impeached by Parliament. Since there is no Parliament, any question of his impeachment does not arise. Therefore, till the completion of his term (January 2003) he could not have been removed. This is the constitutional position," Pirzada said.
The explanation provided by the military government on how Tarar 'ceased' to be the President is interesting. It is the result of the first amendment to the PCO, the Order under which the military government has been governing the country since the October 1999 coup. Under the order, known as the 'Proclamation of Emergency (amendment) Order, 2001', the National Assembly and the four Provincial Assemblies, which stood suspended after the military takeover, stand dissolved. As a consequence, Tarar, who was elected to the post by the members of the National and Provincial Assemblies, "shall cease to hold the office with immediate effect". That is, since the Assemblies now stand dissolved, the person elected by them should cease to hold the office of President.
Sound logic, but it raises some questions. One legal expert said that by the same logic, since the Assemblies that had elected Tarar to the office of President were kept in 'suspended animation' in October 1999, he could not have continued in office. "If one were to stretch the logic, since Nawaz Sharif was ousted from office all the appointments made by him should have been deemed null and void. I do not know if there is any precedent anywhere in the world where the President of the country had to go because the electoral college that elected him was no longer there," the expert said.
The first order also said that the Chairman and the Deputy Chairman of the Senate had already ceased to hold office and the Speaker and the Deputy Speaker of the National Assembly and those of the Provincial Assemblies shall also cease to hold office with immediate effect. Experts wonder if the Speaker of an Assembly could cease to hold office in the event of the dissolution of the House as he continues in the post until the constitution of a new Assembly. Why did the government deem it necessary to incorporate the provision? Was it meant to send out the signal that if the President goes on account of the dissolution of the Assemblies, the Speaker could not be far behind? Besides, when the Supreme Court upheld the 1999 military coup, de facto it conferred the powers of the Prime Minister on Musharraf, who chose to call himself the Chief Executive. The question now asked is could the Chief Executive "remove" the President and appoint himself to the job while continuing as the Prime Minister?
Two major reasons cited by Gen. Musharraf for his latest move were the achievement of political stability and the need to send out a signal of continuity in the "reforms process" on the economic front. He claimed that a climate of political instability was being created by vested interests taking advantage of the fact that the Assemblies were in a state of suspended animation. But the truth is that it is only the splinter group of Nawaz Sharif's Pakistan Muslim League that is talking about the possible revival of the Assemblies and the return of the political class at the helm of affairs. It is a well-known fact that the splinter group is the creation of the military regime. Musharraf met the leader of the splinter group, Mia Azar, on more than one occasion fuelling speculation. The press speculated widely that Musharraf was banking on the faction to get him elected as President.
His decision to dissolve the suspended Assemblies meant a death blow to the hopes of the dissidents, known as the Like Minded Group (LMG) of the Muslim League, to come centrestage. Ironically, for the military regime, it literally proved to be no more than an LMG (light machine gun) in a battle of tanks.
It is under the second amendment to the PCO, known as the President's Succession Order, 2001 that, Musharraf took over as President. It reads: "Upon the office of the President becoming vacant for any reason whatsoever, the Chief Executive of Islamic Republic of Pakistan shall be the President... and shall perform all functions assigned to the President... The Chief Executive shall hold office as President until his successor enters upon his office."
The Order leaves several questions unanswered. It means there is no fixed tenure for Musharraf. It is not clear if it means he continue in office until the new Assemblies elect a new President.
Under the suspended 1973 Constitution, there is no provision for the office of the Chief Executive, which is the creation of the PCO promulgated by the military regime. The chief spokesman of the military government and the chief of the Inter-Services Public Relations (ISPR), Maj.-Gen. Rashid Qureshi, added to the mystery about the tenure of Musharraf when he told Frontline "we would cross the bridge when we come to it," when he was asked whether Musharraf would get himself re-elected by the new Assemblies. After all, Musharraf has promised to stick to the Supreme Court deadline of October 2002 to send the Army back to the barracks and hand over the reins of power to the "useless" politicians.
A distinguished commentator and former broadcaster, I. Hasan, summed up the absurdities of the situation thus: "When there was a Constitution and when the rule of law prevailed, the President of the country was (and presumably still is) the Commander-in-Chief of the armed forces. It is for this reason that the Chief of the Army Staff (and all other chiefs of other armed forces) is the Principal Staff Officer to the Commander in Chief, that is, the President.
"When therefore the Chief Executive becomes the President, then he cannot be the Principal Staff Officer unto himself. But the anomaly is there. The absurdity is there. To add further insult to the injury, the new incumbent continues to hold the title of the Chief Executive and to make it even more ludicrous, he becomes the head of the Joint Chiefs of Staff Committee. One might coin a phrase 'the Principal Staff Officer unto himself'. Why stop at this? He is one PCO away from the ultimate crown."
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